Prosecutor Did Not Waive Formalities by Not Objecting at
Hearing, Panel Says

By KENNETH
OFGANG, Staff Writer

A Los Angeles
Superior Court judge erred by vacating a conviction without giving prosecutors
a formal opportunity to respond, the Court of Appeal for this district has
ruled.

Div. Three
Tuesday sent the case of Levi Gonzalez back to the trial court for
reconsideration of his petition, in which he contended that he was not advised
of the immigration consequences of his 2011 plea of no contest to a misdemeanor
charge of spouse abuse.

In exchange for
the plea, a second misdemeanor charge, false imprisonment, was dismissed and he
was placed on summary probation for three years.

Gonzalez, the
husband of a U.S. citizen, alleged in his petition that he would not have
entered the plea had he been aware that it would prevent him from qualifying
for permanent resident status and would subject him to removal from the
country. The deputy public defender who advised him, he argued, should have
informed him of those possibilities or advised him to consult an immigration
lawyer.

No order to show
cause was issued, and no return to the petition was filed. The case was called
on Sept. 20, 2013 before Judge Halim Dhanidina.

The judge asked
the Long Beach deputy city prosecutor who was present what his position was,
and the deputy said he knew “absolutely nothing” about the case. After noting
that a proof of service had been filed, Dhanidina allowed the prosecutor time
to locate a file, then asked for his response.

After the
prosecutor said “The People submit it,” the judge ordered the conviction
vacated and the case dismissed.

Prosecutors
subsequently appealed to the Superior Court Appellate Division, which
transferred the case to the Court of Appeal, where Justice Richard Aldrich, in
an unpublished opinion, said the judge had no authority to grant relief without
first issuing an order to show cause or a writ of habeas corpus.

He cited People
v. Romero (1994) 8 Cal.4th 728, detailing the procedural requirements that
a court must follow when ruling on a petition for a writ of habeas corpus,
including the requirement that the court—if it finds that the writ states a
prima facie case for relief—issue a writ of habeas corpus or order to show
cause, thus requiring the respondent to file a written return, to which the
petitioner may file a traverse.

The Romero court
emphasized that “the issuance of the writ (or order to show cause) is
mandatory, not optional,” and held that it was error for the Court of
Appeal—which was simultaneously considering the defendant’s appeal and writ
petition—to grant relief based on facts alleged in the petition, without having
issued an OSC or writ.

Aldrich rejected
the argument that prosecutors had waived the requirement of a writ or OSC by
not objecting to the manner in which the trial judge proceeded. The formalities
can be waived by stipulation, he explained, but there was no such stipulation
in this case.

In reversing, he
added, the panel was not expressing an opinion on the merits of the petition.

Attorneys on
appeal were Long Beach Assistant City Prosecutor Randall C. Fudge for the
appellant and Marc A. Karlin for Gonzalez.